When the South Africa’s Film & Publication Board (FPB) released a draft set of regulations designed to regulate online content in South Africa earlier this year, it was met with a hail of criticism, which included it being called unconstitutional and “the worst censorship law in Africa”.
The regulations were opened for public comment, and today the Internet Service Provider’s Association of South Africa (ISPA) asked the FBP for all 600 submissions received regarding the regulations before the consultation process finished in June.
“While we are actively engaging with the FPB around the functioning of the Internet and the way in which South Africans are able to access it, there is a need for all interested parties to be able to evaluate the full range of responses to the draft Policy. To the extent that the FPB purports to be acting in the public interest it is necessary to understand the public sentiment to its proposed policy,” the ISPA said in a press statement.
The final Policy and regulations are expected in the autumn, but what might have spurred the ISPA to action is that the final text of the Film & Publications Act Amendment Bill 2015 was submitted to parliament last week, with little or not fanfare. The regulations – which haven’t been published – will be used to interpret this Bill if parliament passes it. It appeared online at Ellipsis.
The Bill’s abstract, stating its purpose, includes:
to regulate online distribution of digital films and digital
games; to extend the functions of the Film and Publication Board of monitoring
compliance with the Films and Publications Act; to include online distributors in
respect of the requirements to comply with the Films and Publications Act;
The Bill remains highly concerning and essentially gives the FPB sweeping powers to regulate the internet. It contains clauses that specifically outlaw child pornography online and impose hefty fines and jail terms for all who publish such material. Of concern, however, is that there remains a lack of clarity around some language, and a massive increase in the number of people who will have to register with FPB in order to publish their work online.
There is a clause that allows for the exemption of online publishers from the requirement to classify material at the discretion of Council members.
Bloggers, for example, should be frightened by this new clause which describes who is exempt from FPB regulation. Anyone who isn’t- and this group includes people loading content to Facebook, depending on the regulations – may be liable to a R500K fine or two year jail sentence for uploading material that hasn’t been classified by FPB.
Section 16 of the principal Act is hereby amended—
(a) by the substitution for subsection (1) of the following subsection:
‘‘(1) Any person may request, in the prescribed manner, that a
publication, other than a [bona fide] newspaper or magazine that is 50
published by a member of a body[,] that is recognized by the Press
Ombudsman[,] and which subscribes[,] and adheres[,] to a code of
conduct that must be enforced by that body, and, other than an
advertisement that falls within the jurisdiction of the Advertising
Standards Authority of South Africa, which [is to be or] is being 55
distributed in the Republic, be classified in terms of this section.’’;
So news organisations have a get out clause if they’re registered as such, which has been amended to include magazines and – by extension – online versions of magazines according to the definition. That may present a problem for publishers who are online only, according to the definitions laid out in the amendment Bill, they would appear to fall under the definition of online distributor and therefore not subject to this exemption from classification. The definition reads:
‘ ‘online distributor’ in relation to a digital film, digital game or
publication, means a person who conducts business in the selling, hiring
out or exhibition of films, games or publications online through the
internet or any other electronic medium;
While the new definition of magazine “includes an online publication of a magazine”. I’m not sure, but I don’t believe that our site, for example, would constitute an online version of a magazine and therefore may have to carry an FPB warning. Same for Daily Vox or Daily Maverick.
Later in the Bill, a separate clause insists that content distributors not currently subject to the FPB’s jurisdiction – notably TV channels which are regulated by ICASA – which stream video or put content online must now also submit to FPB when their licence is due for renewal.
Elsewhere in the Bill, the phrase “certain publications” is used, which may be the FPB’s way of saying it doesn’t want to censor everyone. This phrase was singled out for criticism at publications of the draft regulations as it isn’t defined and could include anyone.
Free speech campaigners may also be concerned by new clauses which regulate hate speech and “propaganda for war”. Unless the definitions of these are really tight, a lot of politicians and union chiefs might find their rhetorical blogs challenged.
24G. Any person who knowingly distributes, in any electronic medium
including the internet and social networking sites, any film, game or 25
publication which advocates propaganda for war, incites violence, or
advocates hate speech, shall be guilty of an offence and liable upon
conviction, to a fine not exceeding R150 000 or to imprisonment for a
period not exceeding two years or to both a fine and such imprisonment.
On Twitter, Hall noted that although some aspects of the Bill are sound there are implications for anyone planning to exhibit games who hasn’t preclassified with FPB.
@nickhallsa so jailtime for showing an in dev game at EGE or rAge :s
— Julian Pritchard (@Pandawlf) December 3, 2015
— Nick Hall (@nickhallsa) December 3, 2015
The full text of the Bill is here. Let us know what you think and we’ll be following up with more detail tomorrow.